Please Reply to the Austin Office

May 21, 2012 Sunset Advisory Commission PO Box 13066 Austin, TX 78711 Via email to: sunset@sunset.state.tx.us Re:
Austin office 510 S. Congress Suite 304 Austin, Texas 78704 [v] 512.320.8300 [f ] 512.477.2153

Sunset Staff Report on the Texas Department of Criminal Justice, Windham School District, Correctional Managed Health Care Committee and Board of Pardons and Paroles

Dear Sunset Advisory Commission: Texas Defender Service (TDS) is a 501(c)(3) nonprofit organization dedicated to establishing a fair and just criminal justice system in Texas. Thank you for the opportunity to provide written comment on the above-referenced sunset staff report. TDS takes no position on the recommendations made in the staff report. This comment submits a new issue for the Sunset Commissions consideration. ISSUE: Increase transparency of the clemency process in capital cases and expand the venue of last resort for innocence claims prior to execution. BACKGROUND: Section 11, Article IV of the Texas Constitution gives the Board of Pardons and Paroles the power to make recommendations to the Governor regarding clemency. Except when granting a one-time 30-day reprieve, the Governor lacks the power to grant a reprieve or commute a capital sentence to a life sentence without a recommendation from the Board of Pardons and Paroles. Currently the condemned is required to make a petition for clemency at least 21 days before his or her execution date. The petition and other writings related to the clemency process are exempt from the Public Information Act. When the Board considers a clemency petition they vote behind closed doors. The clemency process in capital cases plays two roles of fundamental public importance. First, the clemency process is the final opportunity to look at the substance of the case against the

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Executive Director Kathryn M. Kase Post Conviction Director Gregory W. Wiercioch Trial Project Director John P. Niland Board of Directors Prof. Jordan Steiker, Chair Stephen B. Bright Charles S. Kelley Alison Leland Neal S. Manne Robert Morrow Prof. Jeff Pokorak Douglas Robinson Raoul Schonemann Elisabeth Semel

condemned. It is our last safeguard against executing the innocent. Second, and equally important, the clemency process is an opportunity for the state to exercise mercy. RECOMMENDATIONS: 1. Expand the power of the Board of Pardons and Paroles in capital clemency to improve fact finding and strengthen this fundamental safeguard against executing the innocent. a. Set the date for submission of a clemency application several months before the date of execution in order to enable thorough review and fact finding. b. Set a date for submission of a written response from the state to the clemency application with sufficient time for the Board to hold a hearing on the matter. c. Hold a public hearing on each clemency application, enabling the Board to hear live witness testimony on disputed issues of fact. d. Permit the Board to make recommendations for further process to be accorded to the condemned. e. Give the Board the authority to grant a 30-day reprieve without gubernatorial consent. 2. Ensure transparency of Board processes by applying Texas open government law to the Board of Pardons and Paroles. a. Make all clemency filings public. b. Have the Board meet in public to review each clemency petition and hold their vote in public. c. Issue a written explanation for why each clemency application was granted or denied. The power to grant a reprieve or commute a death sentence is constitutionally created and shared by the Governor and the Board of Pardons and Paroles. Although rarely invoked, it exists as a check and balance on the procedural narrowness of the court review process and recognizes that mercy has a formal role in our legal system. Please take this opportunity to strengthen the clemency process in capital cases. Thank you for your consideration. Sincerely,

Rebecca Bernhardt Policy Director